Opinion of mr advocate general Reischl

Mr President,

Members of the Court,

The case in which I am giving my opinion today is closely connected with the judgment of the Court of 11 July 1974 in Case 8/74 Procureur du Roi v Benoît and Gustave Dassonvilie [1974] 1 ECR 837. Those proceedings for a preliminary ruling were concerned with Article 1 of the Royal Decree No 57 of 20 December 1934 on the protection of designations of origin of spirits (Moniteur Beige of 4 January 1935) and this is also the subject-matter of the present proceedings for infringement of the Treaty. The wording of the article is as follows:

In the first proceedings the Tribunal de Premier Instance of Brussels referred to the Court for a preliminary ruling the question whether a national provision prohibiting the importation of goods bearing a designation of origin where such goods are not accompanied by an official document issued by the exporting country certifying their right to such designation is to be considered as a quantitative restriction or a measure having equivalent effect within the meaning of Article 30 of the Treaty. The Court ruled that:

Even before the judgment in the case of Dassonville the Commission had informed the Belgian Government of its opinion that the provision in question was capable of hindering imports of the relevant products from Member countries which were not producer countries and that the lawful objective of the Belgian authorities, namely the protection of the designation of origin of those products under Article 36 of the EEC Treaty, could be achieved as effectively by other means which would not hinder imports. In its answer of November 1974 the Belgian Government declared itself ready to harmonize its law with Community law having regard to the judgment in Dassonville.

After several fruitless discussions the Commission for a last time in October 1975 demanded that the Belgian authorities should within a period of 15 days give a satisfactory answer to various proposals of the Commission for dealing with the matter. Not until 5 March 1976, however, did the Belgian Government write saying that it would undertake certain amendments to the rules objected to.

Since, in the Commission's view, the proposals did not put an end to the infringement of the Treaty, the Commission wrote on 14 October 1976 to the Belgian Government requiring it within 15 days, which period was extended to a month, to make its position clear. Since there was no reaction to this, a reasoned opinion under Article 169 of the EEC Treaty was issued on 8 December 1976 and received on 16 December 1976, setting a period of one month for the implementation of the requisite measures.

Likewise on 8 December 1976 the Belgian Government informed the Commission, referring to the letter in which it was requested to submit its observations, that in accordance with the judgment in the case of Dassonville there would be a further easing of the Belgian system for checking designations of origin for spirits as a result of the Arrêté Ministeriel of 2 December 1976 to be published shortly in the Moniteur Belge. Moreover, it was in any event intended to repeal the Royal Decree No 57 of 20 December 1934 by a draft law, discussion of which was almost concluded in Parliament, on the control of foodstuffs and other products.

Article 1 of the newly introduced Arrêté Ministériel, which was not in fact published until 11 February 1977 in the Moniteur Belge, provides as follows:

Since, in the Commission's view, those provisions did not go beyond the proposals made in the letter from the Belgian Government of 5 March 1976, which had already then been considered insufficient, the Commission, on 28 December 1977, brought an action before the Court claiming that the Court should:

The Kingdom of Belgium stated in its defence that the Arrêté Ministériel to which the application referred had been repealed by Arrêté Ministériel of 27 February 1978, published in the Moniteur Belge of 15 April 1978, and had not been replaced, so that once again the Royal Decree No 57 of 20 December 1934 alone governed the matter. Since, however, the latter could not be regarded as a measure having an effect equivalent to a quantitative restriction within the meaning of Article 30 et seq. of the EEC Treaty, the action should be dismissed as unfounded.

The French Republic and the United Kingdom of Great Britain and Northern Ireland intervened in the proceedings in support of the Belgian Government.

When the Commission did not alter its statement of claim either in the reply or in its observations on the submissions of the two interveners, the Kingdom of Belgium contended in its rejoinder that the action should be dismissed as inadmissible or in any event as unfounded.

I —. On turning now to consider the law applicable to these facts I must first deal with the question of admissibility. The defendant maintains that on the repeal of the Arrêté Ministériel of 2 December 1976 the action lost its substance and thus became inadmissible. Moreover, the Commission had no interest in the declaration because the Belgian rules coincide with those of the Member States which protect the particulars of origin in their territory. Against this claim it may be said first of all that the Commission's interest in a declaration of infringement of the Treaty does not fall away simply because other Member States have rules similar to the rules in question. Further, an action loses its purpose only if the substance completely falls away. From March 1974, however, until it delivered a reasoned opinion under the first paragraph of Article 169 of the EEC Treaty in December 1976 the Commission was continuously objecting to Article 1 of the Royal Decree No 57 of 20 December 1934, alleging that that provision was a measure having an effect equivalent to a quantitative restriction on imports within the meaning of Article 30 of the EEC Treaty since it made the importation of the particular products from States other than producer States impossible or at least more difficult by requiring a certificate which a so-called parallel importer, in contrast to an importer importing directly from the producer country, could obtain only with considerable difficulty. This view, which was confirmed by the Court in the case of Dassonville, was thus the express subject-matter of the initial procedure under Article 169 of the EEC Treaty. Only after it had delivered its reasoned opinion did the Commission learn that the Belgian Government had just adopted an Arrêté Ministériel in respect of the Royal Decree No 57 which was being challenged, according to which where certain conditions were fulfilled the particular products were to be treated as if they were accompanied by the certificate of authenticity required in the said Decree. The Arrêté Ministériel was not an independent provision but supplemental to the Royal Decree No 57 in order to harmonize the latter with the interpretation of Article 30 et seq. of the EEC Treaty given by the Court in the case of Dassonville. This is also apparent from the defendant's letter of 8 December 1976 in which it notified the applicant of the issue of the Arrêté Ministériel as if it were a transitional provision, while at the same time announcing that the Royal Decree No 57 would soon be repealed. Article 1(1) of the Arrêté Ministériel provided that spirits imported in bottles directly from the country of origin no longer required a certificate of authenticity where the bottles carried a particular closure and a particular label. In contrast, Article 1 (2) provided that spirits bearing a designation of origin imported from a Member State other than the producer State still required certain official accompanying papers. Thus detailed rules were laid down for the basic Decree which had always been objected to, so that now by express provision and not only as a matter of practice different conditions had to be fulfilled for the importation of the same products according to whether they were direct imports or parallel imports via other Member States. The Commission was therefore merely following the dictates of logic when in its statement of claim it regarded the greater difficulty for parallel imports as expressed in the Arrêté Ministériel as a failure to fulfil the obligations under Article 30 et seq. of the EEC Treaty. After the Arrêté Ministériel was repealed, which was after proceedings were commenced, then on any reasonable interpretation the proceedings can be directed only against the basic rules of the Royal Decree No 57. The applicant makes this moreover quite clear when in its reply it states that from the beginning it was not the Arrêté Ministériel as such which represented a violation of the Treaty but the basic Royal Decree which the Arrêté Ministériel clarified. On being questioned, the applicant's representative confirmed at the conclusion of the oral hearing that the above was the purport of the application. Such confirmation is admissible since it does not alter the substance of the application. The application is therefore admissible.

II —. In considering whether the application is well-founded I wish first to discuss whether the provision in question is a measure having an effect equivalent to a quantitative restriction on imports and, if so, whether as such it may be justified under Article 36 of the EEC Treaty.

1. As already mentioned, the Court has already in the case of Dassonville laid down criteria which allowed the Belgian court making the reference to decide whether Article 1 of the Royal Decree No 57 of 20 December 1934, which still today has the same wording, was or was not compatible with the provisions of Article 30 et seq. of the EEC Treaty. To that extent the legal position has not changed, since there is still no uniform Community rule guaranteeing to consumers the authenticity of designations of origin of products, with the result that the protection of designations of origin still varies from one Member State to another.

2. Article 36 of the EEC Treaty, however, for the protection of the matters listed there, allows the Member States to provide for exceptions to the prohibition on quantitative restrictions and measures having equivalent effect. It is not sufficient, however, merely to refer to one of the matters listed; it must be shown that the measure taken is justified, that is that it is necessary for the protection of the matter alleged to be endangered. The second sentence of Article 36 of the EEC Treaty states in any event that such prohibitions or restrictions are not justified if they constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

III —. In view of everything I propose that it should be declared that the Kingdom of Belgium has failed to fulfil its obligations under Article 30 of the EEC Treaty in that under Article 1 of the Royal Decree No 57 of20 December 1934 the importation of spirits bearing a designation of origin and in free circulation in Member States other than the country of origin is subject to conditions which are more difficult to fulfil than is the case for the direct importation of the same product from the country of origin.

1 Translated from the German.